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ELRCAllowedCause No E772 of 2022· [2023] KEELRC 2760 (KLR)

Rotich v Judicial Service Commission (Cause E772 of 2022) [2023] KEELRC 2760 (KLR)

Employment and Labour Relations Court
3 November 2023
2,497 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed employees can access the minutes and records of disciplinary proceedings against them, even where confidentiality rules say otherwise.

What this practically means

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Executive summary

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The claimant, a former employee of the Judicial Service Commission, moved the Court by notice of motion dated 05.05.2023 under Articles 35, 50 and 159(2) of the Constitution and Order 40 and Order 51 Rule 1 of the Civil Procedure Rules, seeking an order compelling the respondent to release the proceedings or minutes of disciplinary sessions of 22.09.2021 and 09.12.2021, and leave to file them in Court. He contended that repeated requests were ignored, that he was exonerated in those proceedings yet unlawfully terminated, and that refusal breached his rights to information and fair hearing. The respondent, through the Chief Registrar of the Judiciary, opposed the application, arguing that no request was ever made, that the application was an afterthought and a fishing expedition filed after pre-trial directions, and that the information was privileged. The Court framed two issues: its power to grant the orders sought, and whether the information was privileged. On the first, it found jurisdiction under section 20(4) of the Employment and Labour Relations Court Act and Article 35, holding the claimant had not moved belatedly since the suit was live. On the second, it held privilege was not established, following its own decision in Simon Rotich Ruto and the Supreme Court's decision in Gladys Boss Shollei, which declared the proviso to section 23 of the Third Schedule to the Judicial Service Act unconstitutional. The Court ordered release of the certified record of proceedings or minutes of the two sessions, filing of the same by 30.11.2023, and costs in the cause.

Key legal issues

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01

Court's power to compel production of disciplinary proceedings

Holding

The Court has power under section 20(4) of the ELRC Act and Article 35 of the Constitution to require the respondent to produce the disciplinary proceedings, and the claimant is entitled to them as the suit is live.

Reasoning

Section 20(4) empowers the Court to require any person to furnish particulars or produce relevant documents for purposes of dealing with a matter before it. Article 35(1) guarantees every citizen access to information held by the State required for the exercise or protection of a right. The claimant pursues fair hearing, fair labour practices and access to justice rights within his pleadings, and since the suit has not been heard, the proceedings are live and the claimant is entitled as prayed.

p. 3
02

Whether the requested disciplinary proceedings are privileged

Holding

The respondent did not establish privilege; following the Rotich case and the Supreme Court's Shollei decision, section 23 of the Third Schedule to the Judicial Service Act (insofar as it denies access to minutes, reports and recorded reasons) is unconstitutional, so the claimant is entitled to the documents.

Reasoning

The Supreme Court in Gladys Boss Shollei held with finality that section 23 of the Third Schedule to the Judicial Service Act does not meet the Article 24(2) criteria for limiting the right of access to information and is unconstitutional. The respondent's assertion that the information was privileged therefore fails, and refusal to release the documents would prejudice the claimant's ability to prosecute his suit.

p. 5

Legal principles established

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  • A party facing disciplinary proceedings is entitled to access information, minutes, reports and recorded reasons relied on in those proceedings; the proviso in section 23 of the Third Schedule to the Judicial Service Act denying access is unconstitutional.

Court orders

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  1. 1.The respondent to release to the claimant the certified copy of record of proceedings or minutes of 22.09.2021 and 09.12.2021 as far as they relate to the disciplinary case initiated and continued against the claimant
  2. 2.The claimant to file the proceedings in Court by way of a further list and copies of documents by mention date on 30.11.2023 at 9.30am or soon thereafter for further directions towards expeditious hearing and determination of the suit
  3. 3.Costs of the application in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 35(1), 41, 47(2), 50, 159(2), 48, 10(2)(a)(c), 232(1)(e)(f), 24(2)
  • Civil Procedure Rules, 2010Order 40, Order 51 Rule 1
  • Employment and Labour Relations Court Act, 2011Section 20(4), 20(5)
  • Judicial Service Act, 2011Section 23 of the Third Schedule; Section 32
  • Employment ActNot specified

Cases cited (3)

  • Hon. Simon Rotich Ruto -Versus- Judicial Service Commission and Another
    [2019] eKLR
  • Gladys Boss Shollei -Versus- Judicial Service Commission & Another, Petition No. 34 of 2014
    [2022] KESC 5 (KLR) (17 February 2022)
  • Hermanus Phillipus Steyn -v- Giovanni Gnecchi-Ruscone, Supreme Court Application No. 4 of 2012
Jurisdiction invoked
Section 20(4) of the Employment and Labour Relations Court Act, 2011; Articles 35, 50 and 159(2) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rotich v Judicial Service Commission (Cause E772 of 2022) [2023] KEELRC 2760 (KLR)", Case Analysis (2023). Cause No E772 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2760/eng@2023-11-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.